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Environment & Planning Update: European news - April 2018

Measures taken to avoid or reduce harmful effects cannot be taken into account in a Stage 1 Appropriate Assessment Screening

This was a referral to the Court of Justice of the European Union (“CJEU”) from the Irish High Court on whether measures to avoid or reduce harmful effects in the special areas of conservation in question could properly be taken into account in a Stage 1 Appropriate Assessment Screening.

In the High Court, People Over Wind and Peter Sweetman had queried the validity of a decision that an Appropriate Assessment of a project was not required based on the ‘protective measures’ outlined in the screening report. The project in question involves the laying of a cable to connect a wind farm to the electricity network. The relevant special areas of conservation at issue were the River Barrow and the River Nore. It was argued that these were not ‘mitigation measures’ but rather protective measures which were built into the design of the project.

The CJEU held that it is not appropriate to take account of the measures intended to avoid or reduce the harmful effects of a plan or project at screening stage. The CJEU stated that, “taking account of such measures at the screening stage would be liable to compromise the practical effect of the Habitats Directive in general, and the assessment stage in particular, as the latter stage would be deprived of its purpose and there would be a risk of circumvention of that stage.”

The determination makes no distinction between avoidance measures or mitigation measures, it does not define mitigation measures, nor does it focus on the effect either of these types of measures would have in avoiding or reducing significant effects. Rather it focuses on the lower standard of ‘harmful effects'.

Poland’s adoption of an appendix to a forest management plan resulted in a breach of its obligations under the Birds and Habitats Directives

The Natura 2000 Puszcza Bialowieska site in Poland, one of the best preserved natural forests in Europe, was designated in 2007 as a site of Community importance (“SCI”) under Directive 92/43/EEC (the “Habitats Directive”). It has also been designated as a special protection area (“SPA”) under Directive 2009/147/EC (the “Birds Directive”).

In 2012, a forest management plan (“FMP”) was adopted which reduced the authorised volume of timber extraction from that site. In 2016, the Minister for the Environment approved an appendix to the 2012 FMP. The appendix amended the 2012 FMP by tripling the volume of harvestable timber and doubling the envisaged area of afforestation and reforestation. The justification given for these amendments was the damage being caused within the forest by the spread of the spruce bark beetle, one of the most extensive in history.

The Commission subsequently brought an application to the CJEU alleging that by adopting the 2016 appendix and carrying out the related forest management operations, Poland was in breach of its obligations under the Habitats Directive and Birds Directive. The CJEU held in favour of the Commission and found that Poland had breached EU law by:

Adopting the 2016 appendix and carrying out the relevant forest management operations without concluding that it would not adversely affect the integrity of the site.

Failing to establish the necessary conservation measures for particular habitat types and bird species for which the site was designated an SCI and SPA. Failing to guarantee the strict protection of certain beetles listed in Annex IV to the Habitats Directive, by failing to effectively prohibit the deliberate killing or disturbance of those beetles or the deterioration or destruction of their breeding sites.

Failing to guarantee the protection of the species of birds referred to in Article 1 of the Birds Directive by failing to ensure that they would not be killed or disturbed during the period of breeding and rearing and that their nests or eggs would not be deliberately destroyed, damaged or removed.

Technical notice on classification of waste published by European Commission

On 9 April 2018, the Commission published a notice on technical guidance on the classification of waste. The notice is designed to provide guidance on the correct interpretation of the classification of waste under EU law.

While the notice is primarily concerned with the classification of waste under Directive 2008/98/EC (the Waste Framework Directive) and the European List of Waste, it also provides a general summary of the overarching legal framework and analyses how key pieces of EU waste legislation affect the definition and classification of hazardous waste. In particular, it provides guidance on:

how to identify hazardous properties;

assess if waste has a hazardous property; and

classify waste as hazardous or non-hazardous.

The notice also provides flow charts to clarify the steps the Commission considers necessary to determine which legislation applies to the waste in question.

Proposed Regulation on the transparency and sustainability of the EU risk assessment in the food chain

On 11 April 2018, the European Commission published its proposal for a Regulation on the transparency and sustainability of the EU risk assessment in the food chain. This draft Regulation would amend current legislation on: general food law; the deliberate release into the environment of GMOs; GM food and feed; feed additives; smoke flavourings; food contact materials; the common authorisation procedure for food additives, food enzymes and food flavourings; plant protection products; and novel foods. It aims to ensure that scientists and citizens have access to key safety related information being assessed by the European Food Safety Authority at an early stage of the risk assessment process.

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